CHAPTER XV.

ADVERSE HOLDING-INDIANS.

In view of the paucity of facts tending to show any settlement, either with or without political control, in the territory in dispute, the alleged control by the Dutch is very confidently and more largely rested, in the British Case, upon their relations with the Indian tribes, and the argument is that, by reason of these relations, the occupation of the savage tribes became a Dutch occupation, and as effectual to establish the Dutch title as if every savage had been a Dutchman.

The laxity of the rule here suggested in the British Case is in strong contrast with the technical strictness maintained as to the discoverer's title. He must occupy on the run, and effectively, by actual posts and colonies, lest mankind should be excluded from the use of the lands he has discovered, while an intruding nation may follow the track of the discoverer and establish a wide sovereignty by alliances with savages, without introducing a settler; and even more, he may extend the borders of a settlement he has made by inciting savage hatreds against the settlements of the discoverer and by alliances up to the very doors of such settlements.

The relations with the Indians are divided into two classes: trade relations, and those in the alleged exercise of political control. It is contended that either furnishes an equivalent under the Treaty to actual occupation by the whites. The proposition is put forward in the following extract from the British Case (p. 149):

"Effective occupation means the use and enjoyment of the resources of the country and the general control of its inhabitants, under the protection and by the authority of a Government claiming and exercising iurisdiction in that behalf."

Effective occupation is here defined to have two distinct elements. The presence of these two elements, it is contended, constitutes effective occupation, These are:

(1) The use and enjoyment of the resources of the country. (2) The general control of its inhabitants, under the protection and by the authority of a Government claiming and exercising jurisdiction in that behalf.

Here we have to consider what is meant by "the general control of its inhabitants, under the protection and by the authority of a Government claiming and exercising jurisdiction in that behalf."

Of

"Inhabitants" clearly refers here to native inhabitants. white inhabitants in the disputed territory there were none except the Spaniards about the upper waters of the Cuyuni and its tributaries. There is no pretense that these were controlled by the Dutch, and territorial control, as it relates to white persons found within the territory, has been shown to have been exercised far more completely and more continuously by the Spaniards than by the Dutch. The only general control of inhabitants in the territory to which this doctrine can refer is the control of the native inhabitants.

The principles governing this contention that title by occupation may be acquired by control over Indian tribes must be discussed in the light of the authorities. Upon this particular point the British Case itself makes this statement (pp. 155–6).

"Where, as was usually the case with the early European Colonies, the colonizing Government enforced a claim to dispose of an exclusive right of trading within any specific area surrounding its settlements, that area was undoubtedly effectively controlled, and its resources in their then state of development were effectively appropriated by that Government.

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"Again, where the Government of a settlement acquires the exclusive ascendency over, and alliance with, surrounding tribes, and by that means excludes foreign influence from the territory which they inhabit, that territory is effectively occupied as against the colonizing enterprise of any other country.

"The American Indians were never treated, as between European nations, as possessing any independent sovereignty, however completely their tribal polity and their occupancy of the soil might be for the time being respected by the Governments under whose influence they came. This is the established view in North America, and it was certainly not less true in South America. It follows that the State controlling the Indians must be recognized as between Europeans as having the sovereignty."

The following, from the Counter-Case of Venezuela (pp. 96-7), makes up an issue of law to which we now address ourselves:

"If it were possible to prove, beyond the peradventure of a doubt, that the Indians had consented to accept the Dutch control and that the Dutch exercised it, Venezuela considers, and will claim, that it could form no foundation whatever for a territorial title. As to such right or title, claimed to be derived by the Dutch or British, either directly or by implication, from or through the Indian tribes, it will be contended, first, that these tribes were wanderers, and had not even possessory titles to any defined territories; second, that by the law of nations and the universal practices of all European States the American tribes having distinct territorial bounds had only a possessory right to the lands occupied, and that this right they were incapable to transfer except to a nation that had already, by discovery or other acts necessary to the appropriation of wild lands, obtained the ultimate title to such lands-such nation having an exclusive right to extinguish the possessory right of the tribes; third, that what such tribes could not do by deed or treaty of cession, much less could they do by any submission or alliance; that the prior right of Spain could not be diminished or affected by any other Power by virtue of any acts or submissions of the tribes; fourth, that such acts and submissions of the tribes were equally ineffectual to extend the political control of the Dutch or the British."

In the British Case, all the facts relating to Indian relations are grouped under the head "Political Control," and would, therefore, seem to be addressed to that clause of Rule (a) of Article IV of the Treaty which says:

"The Arbitrators may deem exclusive political control of a district, as well as actual settlement thereof, sufficient to constitute adverse holding or to make title by prescription."

But the statements from the British Case given above seem to affirm that political control is not only something that may, by

this special provision of the Treaty, be treated as the equivalent of actual occupation, but that, by the general principles of international law, it is an actual occupation.

The Treaty, however, plainly implies that the case must be especially clear and very strong before exclusive political control can be accepted as the equivalent of an actual adverse occupation, and that but for this provision of the Treaty it could not in any case be so accepted.

We insist that this provision of the Treaty must be interpreted in the light of all the rules of international law bearing upon the subject and not inconsistent with the rule prescribed in the Treaty. It is not to be construed as allowing political control to be derived from acts and sources to which the rules of law and the practice of all nations in America deny that effect.

We assert with confidence that writers on international law deny the right of savage tribes to the dominion of lands they occupy, and their competency to cede sovereignty or dominion to any European nation. Nothing that these tribes can do, by treaties of cession or by alliance, can affect a dispute between two European nations as to the sovereignty of the country occupied by such tribes.

The British Case admits that the American Indians were never treated, as between European nations, as possessing any independent sovereignty. They can have, then, no territorial dominion that they can transfer, and quite clearly none that can be derived from them by conquest. That cannot be taken from one which he does not have, either by deed or by force. A European dominion in America was never, by any nation, rested upon cessions or conquests from the natives. It is a clear non sequitur, as well as a perversion of American history, to say that "the State controlling the Indians must be recognized, as between Europeans, as having the sovereignty."

Great Britain would have stopped at the Alleghanies if she had allowed this deduction in favor of the French, and the United